1

Filed 4/6/23 P. v. Fowlkes CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. ALICIA LATRICE FOWLKES, Defendant and Appellant. E078270 (Super.Ct.No. FVA023840)
OPINION

APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Reversed. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Alan L. Amann and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Res pondent.2 INTRODUCTION
In 2007 , defendant and appellant Alicia Latrice Fowlkes entered a plea agreement and pled guilty to second degree murder. ( Pen. Code , 1 § 187, count 1.) In accordance with the agreement, a trial court sentenced her to 15 years to life in state prison. In 2018, the Legislature enacted Senate Bill No. 1437 (2017

- 2018 Reg. Sess.) (Senate Bill 1437), which, among other things, amended the definition of murder (§§ 188, subd. (a)(3), 189, subd. (a)) and added a new provision to the Pena l Code, which establishes a procedure for vacating murder convictions predating the amendment if they could not be sustained
under the amended definition of murder. (§ 1170.95. 2 ) D efendant filed a petition for resentencing under former section 1170.95. The court denied the petition , finding that
Senate Bill 1437 wa s unconstitutional

. Defendant appealed, and this court reversed and remanded for further proceedings. ( Peo ple v. Fowlkes (Oct. 19, 2020, E073589) [non pub.opn.].) The trial court issued an o rder to show cause and, after the evidentiary hearing, denied the petition concluding that defendant was a major participant in the robbery and acted with reckless indifference to life.
On appeal, defendant argu e s the trial court’s findings were not supported by
substantial evidence. We conclude the evidence was insufficient to support the court’s

1 All further statutory references will be to the Penal Code unless otherwise indicated.

2 This provision was renumbered without substantive change to section 1172.6, effective June 30, 2022. (See People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2.) T his opinion will use the statutory designation in effect at the time defendant file h er petition where appropriate and the new statutory designation for events occurring after the change in the law.3

finding of reckless indifference to human life. Thus, we reverse the order denying defendant’s petition and remand with direction s for the trial cour t to vacate the murder
conviction and resentence h er on the count for robbery , in accordance with section
117 2.6, subdivision (e)

.

FACTUAL AND PROCEDURAL BACKGROUND 3
The Preliminary Hearing Defendant and her female codefendant, L.J. (the girls) drove to a nightclub, where they met up with two males

— J.J. and his brother

. 4 They parked at a gas station parking
lot near the club. Once they got there , J.J. started talking about robbing someone. The idea was for the girls to act as lures to entice the would

- be victims.

3 Because defendant pled guilty pursuant to a plea agre ement, t he factual background is taken from the preliminary hearing transcript (PHT) . At the outset of the hearing, the prosecutor asked the court to take judicial notice of the preliminary hearing transcript

. Counsel for one of the codefendants objected to the testimony of law enforcement at the preliminary hearing as inadmissible hearsay. The prosecutor argued that the preliminary hearing transcript was admissible at that time, although the law was set to change on January 1, 2022. The court acknowled ged the upcoming change in law

. After some discussion, t he court decided to allow the preliminary transcript since it was

“ the only evidence ” of what had occurred. (See Exh. 3

. ) The court also reviewed the parole hearing transcript (PRHT) , which both parties agreed to

. D efendant now notes that it is not clear the reliance on the preliminary hearing transcript was proper in light of the January 1, 2022 amendment in section 1172.6, subdivision (d)(3) , which provides that hearsay evidence t hat was admitted in a preliminary hearing “shall be excluded from the hearing.” However, she also points out that the court primarily relied on the preliminary hearing transcript to describe how she committed the robbery and not to resolve whether she was a major participant who acted with reckless indifference

. Thus, she declines to challenge the court’s reliance on it.

4 We note that at the parole hearing, defendant said the other male was J.J.’s nephew.4

The girls were standing in the parking lot when a car drove up. The girls started talking to the occupants of the car

. D. F . was the driver (the driver) and M.R. (the victim)
was in the front passenger seat. The girls went up to the ca r and started talking to them. As they were talking, the driver noticed two B lack males pull up in a Jaguar and park.
The t wo males got out of the Jaguar and started approaching the victim’s car. The males

ma d e contact with the girls and then the girl s start ed to walk away. One of the males

went to the driver’s side of the car , and the other male went to the passenger’s side. They demanded property from the victim and the driver. T he male next to the driver pointed a gun at the driver’s face/head area , as he demand ed the driver give whatever he had on him (e.g., cash)

. The other male pulled the victim out of the car and placed him in the
backseat . T

hen the driver heard a gunshot. The driver looked to see what happened and
saw that the victim had been shot in the head. The male standing next to the driver then

t ook the driver’s ATM card and an identification card. The two males walked back to
their car. The driver check ed on the victim’s condition and drove away.
Parole Hearing At her parole hearing, defendant stated that she had known J.J. for two or three
years , knew he was a gang member , and was dating him at the time of the murder

. Defendant said, once she “was messing around with [J.J.],” and he socked her and gave her two black eyes

. She said J.J. would get intense when he got angry, and when ask ed if he would usually hit her when he became angry, she said he only hit her that one time. As to the robbery, defendant said that J.J. suggested they go to a club, and she agreed. J.J. called his nephew and suggested defendant bring someone along for him, so5

she went and picked up L.J. Defendant and L.J. went to the club and sat in the parking
lot. J.J. told them he wanted to rob somebody, s o they all “ talk [ed] about how [they] were going to do it.” J.J. said he needed the girls to go up to someone and start having a conversation, and then he was going to rob them. Defendant agreed. She and L.J. parked
their car in the gas station parking lot, and J.J. told t hem he was going to leave and come back. While he was gone, the girls started chatting with the victim and the driver . W hen
J.J. returned and pulled up behind them , d efendant said she motioned for J.J. to come

over . W hen he got out of his car, she and L .J. walked away and went over to the club to
stand in line. They subsequently heard a gunshot.
Defendant said she ran back to her car and saw that J.J. and his nephew had already left. She also saw the victi m ’s car pulling away slowly with the back door open
. When asked why she was willing to participate in the robbery, defendant said she wanted to please J.J. She said, “I was a part of it, and I agreed to it, not realizing that I was going to be the reason some body lost their life. I didn’t think that far into it. So I was careless with someone’s life.” Defendant said she knew J.J. was going to rob someone and that he had a gun, but she “did not know he was going to shoot them.” When asked if she thought about t he possibility of someone getting hurt when she agreed to participate in the robbery, defendant said she did not think about anyone getting
murdered. Defendant again stated that she did not think J.J. “would actually shoot him.”
She added that he “sponta neously shot him, so he shot him for no reason.”
Defendant admitted that she had been involved in a prior robbery when she was 17 years old , but said there were no weapons involved. She agreed to go with a girl to a6

fight, and the girl ended up snatching the purse of the victim, to defendant’s surprise. Defendant admitted that from that experience, she had been involved in a criminal act that “turns into something much bigger.” Hearing on the Petition After reviewing the evidence and hearing argument from counsel , the trial court concluded that defendant was a major participant in the robbery who acted with reckless indifference to human life. The court noted that defendant said she knew J.J. had a gun, although she did not think he would use it. The court stated, “Knowledge that you are bringing a gun to a robbery and then being shocked that the gun is used is dangerous business.” The court noted that defendant knew J.J. was “intense when he ’ s angry,” citing that she had gotten two black ey es from him, and yet she motioned for him to come over to complete the robbery. The court concluded that “knowledge of this shooter, as well as knowledge of him bringing the gun to the scene and pulling it out and putting it against the victim’s head, mak es her a major participant who showed reckless disregard for human life.” The court admitted exhibits for appellate purposes, including the preliminary hearing transcript, the parole hearing transcript, and a surveillance video. ( See Exh s
. 1, 3 , 17 )
DISCUSSION
The re Was Insufficient Evidence That Defendant Acted with Reckless Indifference to Human Life
Defendant contends there was insufficient evidence to support the court’s finding that she was a major participant and acted with reckless indifferenc e to human life. She7

specifically argues that her role as a lure and doing what J.J. told her to do was insufficient to make her a major participant in the robbery. Defendant further contends
the mere fact that she knew J.J. was armed during the robbery was insufficient to show she knew he was likely to kill during the robbery. We conclude the evidence supports the finding that defendant was a major participant, but not that she acted with reckless
indifference to life

. A

. Relevant Law
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017

– 2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437). “ ‘The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony

mur der and the natural and probable consequences doctrine by amending Penal Code sections 188 and 189, as well as by adding Penal Code section [1172.6], which provides a procedure by which those convicted of murder can seek retroactive relief if the changes
i n law would affect their previously sustained convictions.’ ” ( People v. Nieber (2022) 82 Cal.App.5th 458, 469 ( Nieber ).) “By amending sections 188 (defining malice) and 189 (defining the degrees of murder), Senate Bill 1437 changed ‘the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was8

not a major participant in the underlying felony who acted with reckless indifference to human life.’” (

Nieber , supra , 82 Cal.App.5th at p. 469. ) 5 The Legislature also added former section 1170.95. “That section provided that ‘[a] person convicted of felony murder or murder under a natural an d probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts.’ [Citation.] A petition may be filed when the following thre e conditions are met: ‘(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petit ioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted o f first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.’ [Citations.]” ( Nieber , supra , 82 Cal.App.5th at p. 469.) “If a petitioner makes a prima facie showing that they’re entitled to relief, the judge must issue an order to show cause and hold ‘a hearing to determine whether to

5 On April 11, 2022, defendant filed a request for this court to take judicial notice of the Assembly Committee on Public Safety, Senate Bill No. 1437 (2018

- 2019 Reg. Sess.), as amended May 25, 2018 , asserting that s he discusses the intent of the Legislature in passing Senate Bill No. 1437 in her brief. We reserved ruling for consideration of the request with the appeal. We now deny the request on the ground that the material is not relevant to our determination of the issues on appeal. ( State Compensation Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 442.)9

vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not .

. . previous ly been
sentenced.’ ” ( People v. Clements (2022) 75 Cal.App.5th 276, 290

- 291 ( Clements ) .) At the hearing “to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Former § 1170.95, subd. (d)(3).) Both parties “may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” ( Ibid. ) If the trial court determines the “peti tioner is entitled to relief, [and] murder was charged generically, and the target offense was not charged, the petitioner's conviction shall be redesignated as the target offense or underlying felony for resentencing purposes.” (Former § 1170.95, subd. ( e).)
B. Standard of Review We review the denial of a resentencing petition under former section 1170.95 for substantial evidence. ( Clements , supra , 75 Cal.App.5th at p. 29 8 .) “ Our job on review is different from the trial judge ’ s job in deciding the p etition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidenc e, contradicted or uncontradicted, to support a rational fact finder ’ s findings beyond a reasonable doubt. ” ( Id . at p. 290.)10

C. The Evidence Was Insufficient
In this case , the question i s whether the evidence was sufficient to support the court’s finding that defendant was a major participant and acted with reckless
indifference to human life.
I n People v. Banks (2015) 61 Cal.4th 788 ( Banks ) , the California Supreme Court articulated several factors to aid in determining whether a defendant is a “ major participant. ” The list is not exclusive and includes the role the defendant had in planning the criminal enterprise, h er role in supplying or using lethal weapons, h er awareness of the dangers posed by the nature of the crime, such as the weapons used or experience of the other participants, whether s he was present at the scene of the killing, whether h er actions or inactions played a particular role in the death, and what s he did after the killing. ( Id. at p. 803.) “ No one of these considerations is necessary, nor is any one of them necessarily sufficient. ” ( Ibid .) The following year in People v. Clark (2016) 63 Cal.4th 522 ( Clark ) , the court “announced related considerations relevant to determining whether a defendant acted
with ‘reckless indifference to human life.’ ” ( In re McDowell (2020) 55 Cal.App.5th 999 , 1007 .) These factors include the defendant ’ s knowledge of weapons used in th e crime, how those weapons were used, the number of weapons used, the defendant ’ s proximity to the crime, his opportunity to stop the killing or aid the victims, the duration of the crime,
the defendant ’ s knowledge of the killer ’ s propensity to kill, and the defendant ’ s efforts, if any, to minimize the possibility of violence during the crime. ( Clark , supra , 63 Cal.4th at pp. 616

- 623.) The Court also explained that “ major participation ” and “ reckless11

indifference to human life ” “ ‘ significantly overl ap both in this case and in general, for the greater the defendant ’ s participation in the felony murder, the more likely that he
acted with reckless indifference to human life. ’ ” ( Id. at p. 615.)
1

. Defendant Was a Major Participant
We first consider that defendant admitted she was part of the planning of the robbery. Once she and L.J. arrived at the parking lot , J.J. told them he wanted to rob somebody, and defendant said they all “talk[ed] about how [they] were going to do it.” The plan was for d efendant to act as a lure to attract the victims , in order for J.J. and his nephew to rob them. Although t here wa s no evidence that defendant supplied a gun, she
admitted she kn ew J.J. had one. Furthermore, when J.J. parked his car in the parking lot,
defendant motioned for him to come over to rob the victims. We note that d efendant
admitted she had been involved in a prior robbery, when s he agreed to go with a girl to a fight, and the girl ended up snatching the purse of the victim. D efendant admitted, f rom that experience, that she had been involved in a criminal act that “turn [ed ] into something
much bigger.”
As respondent asserts, without defendant helping to plan the robbery, luring the victims, chatting with the m, and then signali ng for J.J. to come over, the robbery may have never taken place. Th is evidence constitutes substantial evidence to support the trial

c ourt’s finding that defendant was a major participant

. Defendant’s actions are not like
th ose of getaway driver who parks away from the crime scene and takes no part in the actual robbery of the victims. (See, People v. Clark , supra , 63 Cal. 4th 522, 614; see also
Enmund v Florida (1982) 458 U.S. 782 .)12

2. Reckless Indifference to Human Life Although the evidence supports a finding that defendant was a major participant,

we conclude that it does not support the court’s finding that she acted with reckless
indifference to life

. The court’s finding appea rs to have been based on defendant’s knowledge that J.J. was bringing a gun to use in the robbery, and her knowledge that he could be intense when he became angry since she had received two black eyes from him. However, “ a ny person who plans or participat es in an armed robbery can be said to anticipate that lethal violence might be used, given that ‘roughly 1 in 200 [armed robberies] results in death.’ [Citation.] But that fact, without more, does not establish reckless indifference to human life.” ( In re Scoggins (2020) 9 Cal.5th 667, 682 ( Scroggins ).) Thus, a lthough t he evidence supports a finding that defendant knew J.J. had a gun , her knowledge that he was armed and that lethal force might be used is
insufficient to establish reckless indifference to human life. (See, e.g., Clark , supra , 63 Cal.4th at p p
. 617

- 618 [mere fact defendant knows gun will be used is insufficient to
establish reckless indiffer ence to human life]; Banks , supra , 61 Cal.4th at p. 809; People
v. Ramirez (2021) 71 Cal.App.5th 970, 988 ( Ramirez ) ; People v. Medina (2016) 245 Cal.App.4th 778, 791 [“ knowledge of the possible risk of death inherent in certain
felonies

— like armed robbery

— and knowledge that confederates are armed is insufficient
alone to show a reckless indifference to human life ”].) Furthermore, there was no evidence that defendant knew J.J. was likely to use the gun and kill the victim. “ A defendant’s knowledge of facto rs bearing on a cohort’s likelihood of killing are significant to the analysis of reckless indifference to human life.”13

( Clark , supra , 63 Cal.4th at p. 621.) Here , t here was no evidence that the plan included
the use of lethal force. In other words, “ there appears to be nothing in the plan that one can point to that elevated the risk to human life beyond those risks inherent in any armed robbery. ” (

Id

. at p . 623.) T

he only evidence on the issue was defendant’s statements that
she did not know J.J. was going to shoot the victim

. Defendant said J.J. “spontaneously
shot [the victim] , so he shot him for no reason.” (See e.g., Banks , supra , 61 Cal.4th at
p. 807 [ “ as in Enmund , Banks ’ s killing of [the security guard] was apparently a spontaneous response to armed resistance from the victim ” ].) Additionally , there was no evidence that defendant was aware that J.J. had a propensity to kill. T

here was no evidence that he had killed before. (See Banks , supra , 61 Cal.4th at p. 807 [no evidence that Matthews’s confederates “previously committed murder, attempted murder, or any other violent crime”].) Respondent asserts that defendant “knew that [J.J.] was a volatile gan gbanger who was intense when he became angry.” A lthough the evidence showed defendant knew J.J. was a gang banger , gang membership alone does not demonstrate a propensity to commit lethal violence. (See
Banks , supra , 61 Cal.4th at pp. 810

- 811; In re Miller (2017) 14 Cal.App.5th 960, 976 [although defendant and killer belonged to the same gang and had committed follo w home robberies together, no evidence indicated they had ever participated in shootings, murder, or attempted murder].)
Re spondent further contends that defendant knew J.J. could be intense when he became angry since she had received two black eyes fro m him. The evidence showed
that defendant said she “was messing around with [J.J.],” and he gave her two black eyes.14

However, we note that she said he only hit her that one time. In any event , simply knowing J.J. became angry or was easily provoked to violence, does not show that defendant knew he was likely to kill the victim. (See In re Scoggins , supra , 9 Cal.5th at
pp. 681

- 682.) Finally, r espondent asserts that defendant’s immediate fligh t from the crime scene after the shooting “demonstrates her recklessness as she made no effort to ascertain whether aid to the victim could have helped.” However, the evidence indicates that, after
she motioned for defendant to come over to the victim’s c ar, she left the scene and
walked over to the club to stand in line. After she heard the gunshot, d efendant ran back

to the gas station parking lot

. She said that J.J. had already left the scene, and she saw the victim’s car pulling away. 6 In other wor ds, the victim had already left the scene before defendant returned, and there was no opportunity for her to render aid. Ultimately , on this record, we conclude there was in sufficient evidence to support
the trial court ’ s finding of reckless indifference to human life. “ Reckless indifference

‘ encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his

ac tions. ’ ” (

In re Scoggins , supra , 9 Cal.5th at pp. 676

- 677 .) There is simply no evidence that defendant intended to participate in anything but a robbery, even though she knew a gun would be used , or that she had a willingness to kill the victim. The

6 We note that the surveillance video shows the victim’s car driv e away after the shooting , and then J.J. and his nephew drive away. S everal seconds later, defendant can be seen running across the parking lot . (See Exh. 1 .)15

ci rcumstances cited by the court and respondent do not establish that defendant knew the robbery would be more dangerous than a “ garden

- variety armed robbery. ” (See Ramirez , supra , 71 Cal.App.5th at p. 987 [“ Participation ‘i n a garden

- variety armed robbery ’
where ‘ death might be possible but not probable ’ is insufficient ” ].) W e conclude that , since there was insufficient evidence to support a finding that defendant acted with
reckless indifference , the court should have granted defendant’s petition for re sentencing

. Consequently, we will reverse the court’s order denying defendant’s petition and remand for resentencing. “The petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the pet itioner is entitled to relief pursuant to this section, murder or attempted murder was charged generically, and the target offense was not charged. ” ( § 1172.6, subd. (e).)
DISPOSITION The order denying defendant’s petition under former section 1170.95 petition is
reversed and remanded with direction s to the trial court to vacate her murder conviction
and resentence h er in accordance with section 1172.6

. NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J. We concur:
McKINSTER Acting P. J.
RAPHAEL J.